American Waste Management and Recycling, LLC. v. CEMEX Puerto Rico, Inc. et al

Filing 30

American Waste Management and Recycling, LLC. v. CEMEX Puerto Rico, Inc. et al

Doc. 30

Case 3:07-cv-01658-JAF

Document 30

Filed 09/13/2007

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO AMERICAN WASTE MANAGEMENT AND RECYCLING, LLC Plaintiff, v. CEMEX PUERTO RICO; CANOPY ECOTERRA CORP, Defendants. Civil No. 07-01658-JAF Breach of contract; collection of moneys; damages. Jury trial demanded.

MOTION FOR CLARIFICATION OF ORDER (Docket No. 25) AND OPPOSITION TO AWMR'S REQUEST (DOCKET NO. 28). TO THE HONORABLE COURT: COMES NOW Defendant CEMEX PUERTO RICO (hereinafter,

"CEMEX") and through the undersigning attorneys, respectfully states and prays: 1. Management On August and 17, 2007, LLC plaintiff ("AWMR"), American filed a Waste "Motion

Recycling,

Requesting Order" (Doc. No. 14).

The motion is premised on

alleged (1) bad faith conduct on the part of CEMEX, and (2) events related to AWMR property located at the CEMEX cement plant in Ponce. AWMR's Motion, however, is unclear as to any

specific remedy it requests. 2. On August 22 and 28, 2007, Canopy Ecoterra and

CEMEX, respectively filed their oppositions to AWMR's Motion (Docs. Nos. 15, 19). These oppositions basically explained

Dockets.Justia.com

Case 3:07-cv-01658-JAF

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that

Ecoterra

employees

are

not

working

in

CEMEX's

Cement

Plant in Ponce. 3. On September 11, 2007, this Honorable Court granted CEMEX is more

AWMR's Motion Requesting Order (Doc. No. 25).

than willing to comply with such Order, but is unable to do so. AWMR The Court's Order and applicability are unclear because only moved the Court to "grant this motion in its

entirety, together with any relief which it may deem just and proper under the law." See, Doc. No. 14. 4. be If AWMR requests that Canopy Ecoterra personnel not into the Ponce cement plant, once again, CEMEX

allowed

informs this Honorable Court that it stayed all dismantling and removal and of scrap in its Ponce arose. cement facilities took once

AWMR's

Ecoterra's

dispute

CEMEX

security

precautions to prevent the disappearance of the dismantled and removed material in controversy. Furthermore, CEMEX is not a

party to the agreement between Ecoterra and AWMR and it has no say or objection of to either and party's request regarding as long the as and

removal CEMEX

machinery

"harvested" and

material, are

property,

personnel

operations

respected

protected. 5. Order to As such, to the extent AWMR moved the Court for an stay Court the has removal granted of scrap metal, and that this

Honorable

the

motion,

CEMEX

respectfully

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Filed 09/13/2007

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informs the Court that it is in compliance with such Order. Should the Order address any other issue, CEMEX requests a clarification of the extent of the Order. 6. Today AWMR filed a "Request for Preservation Order

at CEMEX Site and for Inspection in Accordance to Docket No. 25", alleging harvested material has been removed, when it is not so, and requesting an inspection of "any and all CEMEX facilities in Ponce". Such a request is unreasonably

overbroad and onerous. 7. CEMEX facilities in Ponce not only include the

cement plant where AWMR was engaged by Ecoterra to dismantle and remove materials, they also include a lime plant, a ready mix plant, the area. the transport AWMR's site, and another with of plant in the only

Mercedita included

subcontract and removal

Ecoterra scrap

dismantling

material

specified in its exhibit 1.

Exhibit 1 to the subcontract

exclusively lists equipment and machinery specified by CEMEX in its "Scope of Work" for the principal contract; equipment which is only located in the cement plant. Complaint "Items to (Docket be No. 1), Ecoterra/AWMR Removed"; See, Exhibit 1 Ex. 1

Contract's 2

Dismantled

and

Exhibit

Complaint

(Docket No. 1), CEMEX's contract with Ecoterra, Scope of Work and Plan arrangement.

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Case 3:07-cv-01658-JAF

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8.

AWMR's

position

--that

it

was

contracted

to

"dismantle the plant in its entirety"-- is false and, at best, is a very flawed attempt to mislead this Honorable Court. simple plant's review layout of AWMR's and subcontract, which clearly includes shows A the the

specifications,

restricted list of items it was to dismantle, and that these items were all located exclusively within the cement plant. 9. otherwise, recording As to of such, the all AWMR entry, CEMEX is not entitled, and contractually worse yet, There or

inspection, in

video is no

facilities

Ponce.

relevant evidence in all premises; the contract regarding the above captioned complaint was not executed or performed in any CEMEX sites other than the cement plant in question. AWMR has

no entitlement over any materials found anywhere else in CEMEX facilities or, for that matter, over materials it has not

dismantled or loaded. (Doc. No. 1),

See, Exhibits 1 and 2 to Complaint contract and Ecoterra/AWMR

CEMEX/Ecoterra

subcontract. 10. TRO, the During the initial Court hearing expressed harm in on AWMR's request for the the

Honorable of

doubts

regarding due to

existence

irreparable

this

case,

contractual nature of AWMR's claim. been shown. is an

Thus, no real urgency has

AWMR's only justification for its onerous request entitlement to certain property which may

alleged

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`disappear'.

This

situation

may

be

easily

redressed

with

monetary compensation.

Absent any urgency, any request for

inspection of premises is really a request for discovery of evidence, and should be treated as such by this Court. that AWMR has not contacted CEMEX's counsel of Given to

record

coordinate a date for the Fed. R. Civ. Proc. 26(f) conference, or initiated discovery proceedings, including a formal request through counsel of record of entry for inspection under Fed. R. Civ. Proc. 34, a Court Order for these purposes is

premature. 11. Given the controversies of fact created by the newly

expressed extent of AWMR's "Request for Protective Order," if this Court were to decide that an Order of such magnitude may be warranted, in the alternative, CEMEX respectfully requests that this Honorable Court set a status conference before

emitting such Order, so as to hear all the parties, discuss the issues involved regarding AWMR's Request, and perhaps

schedule discovery and other events in the case. WHEREFORE, defendant CEMEX Puerto Rico, respectfully

requests this Honorable Court GRANT the present motion and note that CEMEX is in full compliance with the Court's

September 11, 2007 Order (Doc. No. 25).

In the alternative,

and only if necessary, CEMEX requests the Court set a status conference to discuss all matters related to the actual case,

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Case 3:07-cv-01658-JAF

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including the extent of its Order, and schedule the remaining events in the case. RESPECTFULLY SUBMITTED. I HEREBY CERTIFY that today I electronically filed the foregoing with the Clerk of the Court using CM/ECF system

which will send notification of such filing to all counsel of record. In San Juan, Puerto Rico, this 13th day September of 2007. /s/Jaime E. Toro-Monserrate_ Jaime E. Toro-Monserrate USDC-PR No. 204,601 [e-mail] /s/Joanne A. Tomasini-Muņiz_ Joanne A. Tomasini-Muņiz USDC-PR No. 218,809 [e-mail] TORO, COLÓN, MULLET, RIVERA & SIFRE, P.S.C. Attorneys for defendant, CEMEX Puerto Rico PO Box 195383 San Juan, PR 00919-5383 Tel: [phone] Fax: [phone]

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